11th Cir. finds healthcare mandate unconstitutional

From Politico:

The 11th Circuit Court of Appeals on Friday ruled that the health care reform law’s requirement that nearly all Americans buy insurance is unconstitutional, a striking blow to the legislation that increases the odds the Supreme Court will choose to review the law.

The panel partially upheld a ruling issued in January by Judge Roger Vinson, who struck down the entire health reform law. However, the 11th Circuit said that the rest of the legislation can stand even if the mandate is unconstitutional.

The panel also said that the law’s expansion of Medicaid is constitutional, ruling against the states.

Read more here.

Hon. M. Blane Michael Passes

M. Blane Michael, a judge on the U.S. Court of Appeals for the 4th Circuit, has passed away. From the Washington Post:

Michael served as special counsel during [now-senator] Rockefeller’s first term as governor from 1977 to 1980.

Rockefeller, D-W.Va., called Michael “my dearest friend and confidant.”

“Unvarnished in his honesty, uncanny in his humor and unequaled in his humility, Blane was a formidable presence of the federal bench, with a moral and intellectual compass set hard for justice,” Rockefeller said in a statement. “He was a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people’s lives or righted serious wrongs.”

Michael was born in Charleston, S.C., but grew up in Grant County, W.Va. He graduated from West Virginia University in 1965 and received his law degree from New York University School of Law three years later.

Michael worked at a private practice in New York City, then served as an assistant U.S. attorney for the Southern District of New York in 1971 and 1972. After that, he returned to West Virginia, where he worked as an attorney until going to work for Rockefeller.

“I will be forever fortunate to call him my dearest friend and confidant — the kind you just trust to his very core and whose deep, easy companionship abides with you for a lifetime,” Rockefeller said.

After returning to private practice, Michael served as campaign manager for the late U.S. Sen. Robert C. Byrd. Michael was nominated by President Bill Clinton and confirmed to the 4th Circuit in Richmond on Oct. 1, 1993.

"Six" Nominated to the 10th Circuit

President Obama nominates Former Kansas Attorney General Steve Six to a seat on the 10th Circuit vacated by new Pepperdine Law Dean, Deanell Tacha.

"No Jokes, Judge"

From the ABA Journal:

A lawyer for West Publishing didn’t see the humor when a federal judge hearing a motion to set aside a nearly $5.2 million defamation verdict tried to lighten the proceedings.

New York lawyer James Rittinger is asking the judge to overturn or reduce the award to two law professors who said they were defamed when West identified them as the authors of a pocket part that was written by a first-year lawyer. The Legal Intelligencer covered the arguments.

The senior federal judge, John Fullam, “is known for an especially dry wit and a deadpan delivery,” the Intelligencer says.

When Rittinger said the professors didn’t have “a single case” to back up one of their arguments, Fullam asked, “What about married cases?” When Rittinger objected to the size of a punitive award, Fullam asked, “You think it should be increased?"

Rittinger explained that he got the joke when the judge tried to explain the first question, according to the Intelligencer account. The lawyer gave a straightforward answer to the second question, saying, no, the award should not be increased. Later, he told the judge what he thought of his humor.

"Judge, you know, I guess it's funny, but it's not funny to me. It was a shock, and it should not have happened. So it is not a joking matter to the West Corporation," Rittinger said.

The plaintiffs in the suit are University of Pennsylvania law professor David Rudovsky and Widener law professor Leonard Sosnov.

Check out the article.

Judge Tacha is New Dean at Pepperdine

. . . and the 10th Circuit now has two vacancies.

"Cold War" Stalling Judicial Nominations

The landscape's getting worse.

Judicial Vacancies

Carl Tobias on filling the vacancies on the 10th Circuit.

Obama Will Nominate Berkeley Law Professor to 9th Circuit

From the L.A. Times:

President Obama will nominate UC Berkeley law professor Goodwin Liu to the U.S. 9th Circuit Court of Appeals on Wednesday. . . .

Liu carries credentials that some conservatives love to hate -- including a leadership position in a progressive legal group and a record of opposing the confirmation of Supreme Court Justice Samuel A. Alito Jr.

But he has conservative admirers too. Liu has supported school choice as a solution to problems in urban education, and has served as faculty advisor to the California College Preparatory Academy, a public charter school. He came to the White House's attention with the recommendation of some conservatives.

If confirmed, he could be the only full-time Asian American judge on a federal appellate court. A senior administration official revealed his nomination on condition of anonymity.

I'm sure Fed Courts professors everywhere are ecstatic.

Clerkship Applications up 66% From Last Year...

Back in February, we inquired whether the economic climate would lead to fewer candidates applying for judicial clerkships. As we noted:

[W]ith firms laying off by the dozen and swelled profits drying up, can anyone comfortably state that clerks will continue to receive BigLaw's "most favored associate" status? Probably not. In fact, it is entirely conceivable that clerking could pose an affirmative disadvantage for students with respect to firm employment: offers can be revoked, bar expenses unpaid…the potentially adverse consequences of choosing to clerk rather than go straight to a firm are plentiful.

Explaining the Lag in Filling Federal Judgeships

The Obama administration's pace in filling the many federal court vacancies has been quite slow. As we observed back in early October, President Obama has appointed considerably fewer judges than President Bush did during his first year and--more significantly--has had much less success in the confirmation process than his predecessor. While President Bush got fifty-three nominees confirmed in his first year, only four of the twenty-four lower federal judges appointed by President Obama have been confirmed with the new year just around the corner.

What, exactly, explains this perplexing phenomenon to which mainstream media outlets are only recently starting to pay attention?

Fast Moving Week in the Senate--Two District Judges Confirmed

Nearly a month ago, we noted in a clerkship series post that the Senate Judiciary Committee had sent four federal judicial nominations to the Senate for a vote, encouraging prospective clerkship applicants to polish their applications off to receive a federal clerkship in October or beyond. So far, it looks like we chose the word "beyond" wisely--opportunities may extend well into the spring given the current pace of things.

Judge Richard Posner . . . a Keynesian?

At the New Republic, Judge Richard Posner has confessed how the current financial crisis has caused him to become more attuned to the ideas of John Maynard Keynes and his vision of an interventionist economic policy where the government uses fiscal and monetary tools to counteract the cyclical--and, as this recent economic crisis perhaps illustrates, unpredictable--business cycle. As Judge Posner writes:

We have learned since September that the present generation of economists has not figured out how the economy works. The vast majority of them were blindsided by the housing bubble and the ensuing banking crisis; and misjudged the gravity of the economic downturn that resulted; and were perplexed by the inability of orthodox monetary policy administered by the Federal Reserve to prevent such a steep downturn; and could not agree on what, if anything, the government should do to halt it and put the economy on the road to recovery.

Central to Keynes' theory--the reason behind the now-apparent recovery, as the Judge writes--is that consumption is, after all, "the sole and end object of all economic activity." Sparing complicated mathematic explanations, this is partly because passive investments (i.e., income not necessarily infused into productive activity, but derived from savings) theoretically take some time to stimulate economic growth. Alternatively, active investments create income and essentially form what Keynes calls a "multiplier effect," further increasing the "incomes of people . . . on the receiving end [of any initial income spent on a given product]." Judge Posner uses this example:

When I buy a bottle of wine, the cost to me is income to the seller, and what he spends out of that income will be income to someone else, and so on. So the active investment that produced the income with which I bought the wine will have had a chain-reaction--what Keynes calls a "multiplier"--effect.

Consumption, in Keynes' theory, is the driving force of economic growth. And, as the Judge explains in this article, the government must effectively counterbalance times when consumption is lacking and hoarding is rampant. From this vantage point, Judge Posner notes that "[b]y now a majority of economists are in general agreement with the Obama administration's exceedingly Keynesian strategy for digging the economy out of its deep hole."

Keynes' theory, of course, presupposes business cycles. However, I have rarely seen consideration given to the structural imbalances in the capital structure of our economy. Many economists, in fact, quite convincingly show that reckless monetary policy obfuscates real interest rates, creating distortions in long-term demand for capital. In addition, persistent bailout guarantees and a hyper-expanding credit market have created perverse incentives for private market actors. Put another way, these instances may in some respect be attributed to bad government policy. So a question I must ask is that, even if Keynes' theory solves the structural distortions of the business cycle--a point which I am admittedly not equipped to debate--are there other policy measures directed at resolving potential core causes of the financial crisis that should be taken into account before we grant the government a medal of honor?

Check out Judge Posner's article.

Supreme Court calls on former clerks . . . Oh, and by the way, we're back

After a fairly long--and for us, taxing--hiatus, the team at Blackbook Legal is back in business and ready to dive into the interesting legal issues of the day. We want to really thank all of our avid readers who have stuck it out with us during our brief hibernation. While our site traffic declined slightly in the past few months, many still perused our old threads, and kept the discussions alive. Moreover, we have a substantial number of e-mail requests for articles which we will publish in the due course.

As a cool kick-off article, I thought I would direct readers to a story I saw over at law.com. The article discusses the custom practice of Supreme Court Justices requesting that former clerks argue cases that others have simply abandoned. Justice Stevens provides the most recent example of this practice by his offer to Amanda Cohen Leiter, former clerk and current professor at Catholic University's Columbus School of law, to make her first oral argument before the Supreme Court. So this is one cool long-term perk of landing a Supreme Court clerkship that

[m]ost often . . . happens because the government no longer embraces the position it would be expected to espouse at argument. Rather than dismiss the case, the Court will name a lawyer -- almost always a former clerk -- to advance the orphaned argument, guaranteeing a full airing of both sides.

Indeed, esteemed appellate practitioners like John Roberts and Maureen Mahoney got their first case assignments this same way. Check out the article.

Here Come The Judge(s)!

Via Politico: Federal judges go Judge Dredd on DOJ.

I've always been told that the lawyers in the DOJ & U.S. Attorney's offices around the nation are the creme de la creme. Many of them come from the "finest schools" and have impeccable credentials. So, Illuminati, why do you think people who are otherwise brilliant fail to exercise common sense and/or play fairly?